FEDERATED DEPARTMENT STORES, INC., PETITIONER,
v.
PAVARINI CONSTRUCTION CO., INC., AND HOWARD P. FOLEY COMPANY, RESPONDENTS
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Federated Department Stores seeks review of orders staying an interpleader proceeding and compelling arbitration. The court denies the petition but clarifies that when a party contests whether the right to arbitration has been waived, that question should be decided by arbitrators rather than the court.
When a party contends that the waiver question should be answered by arbitrators, the arbitrators—not the court—should decide whether the right to arbitration has been waived. A court may decide the waiver question only if no issue is made regarding which tribunal should decide it.
[1] The question of whether the right to arbitration has been waived is generally for the arbitrators to decide.
[2] A court may decide the question of arbitration waiver if no party disputes that determination.
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Join FLexlaw to unlock all legal intelligence“the question whether arbitration has been waived was one for arbitrators to decide rather than the court”
Establishes the core holding that arbitrators, not courts, should determine waiver when the issue is contested
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Join FLexlaw to unlock all legal intelligenceFederated Department Stores initiated an interpleader proceeding. The circuit court issued orders staying the trial court proceeding and granting resp…
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PER CURIAM.
By petition for writ of common law certiorari Federated Department Stores, Inc., seeks review of two orders of the circuit court staying a trial court proceeding for interpleader and granting respondents’ motions to compel arbitration.
We have considered all of petitioner’s contentions pointing to alleged error in the trial court’s rulings and find no reason to quash the orders in question. Accordingly, we would simply deny the petition except that we deem it appropriate to comment upon the question of which tribunal should determine whether the right to arbitration has been waived.
Numerous cases can be cited wherein the circuit court has determined whether the right to arbitration has been waived and those decisions have been reviewed without any comment indicating the question might be one for the arbitrators. However, that very question was raised in Public Health, etc. v. M.R. Harrison Const., 415 So. 2d 756 (Fla. 3d DCA 1982), and the court held the question whether arbitration has been waived was one for arbitrators to decide rather than the court. The opinion points out that the question can be decided by a court if no issue is made with regard thereto. But when issue is drawn over which tribunal should decide the question the nod should be given to the arbitrators. We believe the Public Health case is well reasoned and opt to follow it. Nor are we concerned with the ostensible conflict with our decision in Wm. Passalacqua Bldrs. v. Mayfair House Ass’n, 395 So. 2d 1171 (Fla. 4th DCA 1981), wherein the opinion states that a motion to compel arbitration requires a judicial determination of, among other things, the question whether arbitration has been waived. We would simply modify that statement as follows: the question whether arbitration has been waived may be decided by a court unless one of the parties contends the waiver question should be answered by the arbitrators in which case it should be answered by the arbitrators.
In view of the foregoing we deny the petition for writ of certiorari with the understanding that the question of waiver of the right to arbitrate shall be resolved in the arbitration proceeding.
DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.
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Citator
Cited By (11 total)
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Graham Contracting, Inc. v. Flagler Cnty., 444 So. 2d 971 (Fla. 5th DCA 1983)…eal have adopted the view that the issue of whether a demand for arbitration is timely according to the meaning of the contract is a question to be decided in arbitration. See Federated Department Stores, Inc. v. Pavarini Construction Company, Inc., 425 So. 2d 1212 (Fla. 4th DCA 1983); Rinker Portland Cement Corp. v. Seidel, 414 So. 2d 629 (Fla. 3d DCA 1982). We believe that a waiver of the right to arbitrate should not be implied from mere inaction unless the delay has given the party seeking arbitration an u…
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ARI Mut. Ins. Co. v. Hogen, 734 So. 2d 574 (Fla. 3d DCA 1999)…. Co. v. Tarr, 638 So. 2d 106, 108 (Fla. 3d DCA 1994); Piercy v. School Bd. of Washington County, Fla., 576 So. 2d 806, 807 (Fla. 1st DCA 1991). However, Hogen, in opposition, cites to Federated Department Stores, Inc. v. Pavarini Construction Co., 425 So. 2d 1212 (Fla. 4th DCA 1983), a decision of the Fourth District, that addresses the issue of who should decide the issue of waiver and states: that very question was raised in Public Health, etc. v. M.R. Harrison Const., 415 So. 2d 756 (Fla. 3d DCA 1982), a…
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Ibis Lakes Homeowners Ass'n, Inc. v. Ibis Isle Homeowners Ass'n, Inc., 102 So. 3d 722 (Fla. 4th DCA 2012)…on.”). Nevertheless, Isle argues that the question of waiver should have been decided by the arbitrators since Isle had voiced this desire at the hearing below. Isle bases this argument on Federated Dept. Stores, Inc. v. Pavarini Constr. Co., Inc., 425 So. 2d 1212, 1213 (Fla. 4th DCA 1983), where this Court held that “the question whether arbitration has been waived may be decided by a court unless one of the parties contends the waiver question should be answered by the arbitrators in which case it should be…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Pub. Health Tr. OF Dade Cnty. v. M.R. Harrison Constr. Corp., 415 So. 2d 756 (Fla. 3d DCA 1982)
- William Passalacqua Builders, Inc. v. Mayfair House Ass'n, Inc., 395 So. 2d 1171 (Fla. 4th DCA 1981)